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PETITIONER: RANBIR AND ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT26/04/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 1409            1974 SCR  (1) 102  1973 SCC  (2) 444

ACT: Evidence-Appraisal in cases of party factions.

HEADNOTE: The  appellants  were convicted under Ss.  148  and  325/149 I.P.C. Dismissing the appeal to this Court by special leave, HELD  : ((1) In cases of party factions, there is  generally speaking a tendency on the part of the prosecution witnesses to  implicate  some innocent persons along with  the  guilty ones,  but  normally  where the general  substratum  of  the occurrence cannot be held to arouse any reasonable doubt  or suspicion about its having taken lace, then the  prosecution witnesses,  provided  they are held to  have  witnessed  the occurrence  and  to  be  in  a  position  to  identify   the assailants,  are not ordinarily to be assumed to  have  left out  the actual offenders or the guilty  persons.   Although the   witnesses   for   the   prosecution   are,   in   such circumstances,  prone to exaggerate the culpability  of  the actual assailants as also to extend the participation in the occurrence to some possible innocent members of the opposite party as well, the court has to sift the evidence and  after a  close  scrutiny with anxious care and caution to  try  to come  to a judicial conclusion as to who out of the  accused persons  can be safely considered to have taken part in  the assault. [105E-G] (2)The maxim falsus in uno falsus in omnibus is not a  sound rule  to  apply  in  the conditions  in  this  country  and, therefore,  it  is the duty of the court in  cases  where  a witness has been found to have given unreliable evidence  in regard to certain. particulars to scrutinise the rest of his evidence  with care and caution.  If the remaining  evidence is  trustworthy and the substratum of the  prosecution  case remains intact then the court should uphold the  prosecution case  to the extent it is considered safe  and  trustworthy. [105G-H; 106A] Deep  Chand  v.  State  of Haryana,  [1959]  3  S.C.C.  890, followed. (3)  The  question  of delay in examining a  witness  during investigation  is  material  only if it  is  indicative  and suggestive  of  some unfair practice  by  the  investigating agency  for the purpose of introducing a got-up  witness  to falsely  support  the prosecution case: it’  is,  therefore,

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essential  that  the Investigating Officer should  be  asked specifically about the, delay and the reasons therefore.                                               [106 B-C] (4)  This  Court does not, normally speaking, undertake  the appraisal  of  evidence in an appeal under Ar.  136  of  the Constitution. [107B-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 5 of 1970 Appeal  by special leave from the judgment and  order  dated July  22,  19166  of the Punjab and Haryana  High  Court  in Criminal Appeal No. 836 of 1964. N.   N. Goswamy and S. N. Mukherjee, for the, appellants. H.   S. Marwah and R. N. Sachthey for the respondent. The Judgment of the Court. was delivered by DUA,  J.-In  this appeal by special leave,  five  appellants have challenged their conviction under ss. 148 and  325/149, I.P.C.  and sentence of rigorous imprisonment for two  Years on  each count with additional fine of Rs. 200/- each  under ss.  325/149,  I.P.C.  and in default  of  payment  of  fine further rigorous imprisonment for six months, up- 103 held  by  a learned Single Judge of the Punjab  and  Haryana High  Court  on appeal from the judgment and  order  of  the Sessions Judge, Ferozepur. Originally,  13 persons including the five  appellants  were tried  by  the  Sessions Judge,  Ferozepur  under  ss.  148, 307/149  and 364, I.P.C. According to the broad features  of the  prosecution story, on August 11, 1963, Dharamvir  P.W.9 started from his village Ramsara for his land in the area of Azamgarh some time between 7 and 8.00 a.m. He was driving  a bullock  cart and with him were his wife Nathi,  P.W.5,  his brother’s wife Ankori, P.W.6, and a small girl Guddi as also one  Chandu,  in the said cart. Walking behind the cart  was his brother Jaidev, P.W.4. When they had covered a  distance of about 1 1/2 miles from the village Ramsara and were  near the land of Ranbir appellant three jeeps overtook their cart from  behind.  One  jeep  stood in front  of  the  cart  and obstructed  its passage : another jeep stood by the side  of the  cart towards the east and the third one was behind  it. All  the  13  accused persons  armed  with  various  weapons emerged from the three jeeps. We are not concerned with  the other  accused  persons  who  are  not  before  us.   Ranbir appellant was stated to be carrying a   spiked dang known as sela. Laxmi appellant was stated to be armed with a  kuthari Hanuman  appellant  was armed with a gun and  the  remaining appellants  with lathis. Some of the accused persons  pulled down  Dharamvir  from  the  cart. All  of  them  started  be labouring him with their respective weapons. Jaidev, brother of  Dharamvir, intervened in order to save his brother,  but he was also be laboured by Ranbir and Laxmi appellants along with another accused person, with their respective  weapons. Shrimati Ankori, wife of Jaidev and Shrimati Nathi, wife, of Dharamvir,  who tried to protect their  respective  husbands against  further injuries, were also be laboured by some  of the  accused persons. Tota Ram P.W.7 and Hardwari  P.W.8  of Ramsara  village  also  witnessed  the  occurrence.    After causing  injuries both to Dharamvir and Jaidev, the  accused persons are stated to have lifted them both and put into one of the jeeps which was driven away towards the east. In  the field of Ranbir, Jaswant appellant is stated to have wrapped a  gunny  bag  round  the  knees,  of  Dharamvir  and  Laxmi appellant  to have placed a five seer iron weight under  the

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knee. Ranbir appellant and Sahi Ram accused are then  stated to have struck hammer blows on Dharamvir’s knee. Thereafter, Jaidev was removed to a distance of about 20 karams from his brother Dharamvir and given similar injuries on his knee  by Ranbir, Jaswant, Laxmi appellant and Sahi Ram accused. After causing them these injuries, Dharamvir and Jaidev Were again put in one jeep with the object of cutting them into  pieces and  throwing them in the pucca canal. The three  jeeps  are then  stated to have been driven away towards Abohar. It  is said  that  the  pucca canal lay  ahead  of  Abohar  towards Fazilka. On the            way when the jeeps reach a katcha canal  at a distance of about 11 miles from  Abobar  towards Ramsara, one of the jeeps returned to Ramsara,    whereas the remaining two jeeps went ahead towards Abohar. When  the jeeps  containing  Dharamvir and Jaidev  reached  near  the, police station Abohar, the two injured person$ raised alarm. The  occupants of the jeep thereupon dropped Dhiaramvir  and Jaidev on the road side 104 at  a short distance from the police station and  themselves drove back.  Within a few minutes, A.S.I., Bhagat Singh  and some  other  police  men arrived from  the  police  station. A.S.I., Bhagat Singh, recorded Jaidev’s statement which  was sent  to  the  police  station and  on  the  basis  of  that statement  F.I.R.  Exh.  P.G./2 was  recorded.   Jaidev  and Dharamvir  were  removed to the civil hospital,  Abohar.   A short  while thereafter, Smt.  Ankori and Smt.  Nathi  along with  Guddi  also reached the Civil Hospital,  Abohar.   The doctor  in  charge  was,  however,  not  available  but  the compounder  gave first aid to the four injured persons,  Who were  then taken to Fazilka Hospital where Dr. Parkash  Kaur of the Civil Hospital advised Dharamvir’s immediate  removal to the Civil Hospital, Ferozepur.  Smt.  Ankori, Smt.  Nathi and  Jaidev  stayed on in the Civil Hospital,  Fazilka,  but Dharamvir was removed to Ferozepur. The  Sessions Judge on appraisal of the evidence led-in  the case  and  after examining all  the  relevant  circumstances noticed  the non-inclusion of the name of Moman  accused  in the F.I.R. and concluded that it was- doubtful if Jaidev had merely forgotten to mention his name at that stage  because, (i)  Tota Ram P.W.7 had also not supported  the  prosecution version with respect to Moman’s participation, (ii) Hardwari Lal  P.W.8,  Smt.  Nathi P.W. 5 and Smt.  Ankori  P.W.6  had also  failed to identify Moman as one of the  culprits,  and (iii)  Jaidev  P.W.4  and  Dharamvir,  P.W.9  had  also  not ascribed  any particular injury to this accused.  Moman  was accordingly given benefit of doubt and acquitted of all  the charges.   The remaining 12 accused persons  were,  however, held guilty of the offences charged and convicted as already noticed. On appeal the Punjab High Court Went into the relevant facts to  which the attention of the learned Single Judge  hearing the  appeal  was invited.  It was argued in the  High  Court that  the testimony of the eye witnesses was not worthy.  of acceptance  because  of  the  admitted  enmity  between  the parties   and   of  the  various  discrepancies   in   their depositions.   It was contended that in view of  the  highly strained relations between the parties there was a danger of false implication and if the Court could not separate  truth from  false  hood, all the appellants were entitled  to  the benefit  of  doubt and to be acquitted.  The  learned  Judge then went into the evidence and came to the conclusion  that the testimony of the eye witness was consistent With  regard to  the participation of Ranbir, Hanuman, Jaswant and  Laxmi appellants  in  the  occurrence in  question  and  excepting

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Hardwari  P.W. 8, all the eye witnesses had deposed  to  the participation  of Hari Ram appellant as well.  In  spite  of the  fact  that  all the eye witnesses ha  I  supported  the prosecution   allegation  that  the  five  appellants   were accompanied by 8 other persons, Hardwari P.W.8, Smt.  Nathi, P.W.5 and Smt.  Ankori P.W.6 were not in a position to swear if  the other accused persons who had appealed to  the  High Court were the associates of the aforementioned five accused persons.   In  face  of  this state  of  the  evidence  when admittedly there was considerable bad blood between the  two parties,  the High Court considered it extremely  unsafe  to hold  anyone other than the five appellants to be guilty  of participation in the assault, particularly when three out of the six eye witnesses bad not identified them 105 at  the trial.  The medical evidence, according to the  High Court, was consistent with the prosecution case against  the appellants and the F.I.R. was of considerable  corroborative value. It was contended in the High Court on behalf of the  accused persons  that the statement of Jaidev on the basis of  which F.I.R. was recorded had not been taken down on the spot, but had  been  recorded later in the hospital where  Jaidev  had been  removed.   Even accepting’ this contention,  the  High Court found it difficult to believe that within such a short time  Jaidev  who had been badly injured would  be  able  to fabricate  such  a detailed and complicated version  of  the incident.  Accepting the substratum of the prosecution case, the learned Single Judge after scrutiny of the testimony  of the  eye  witnesses  gave benefit ,of  doubt  to  the  other appellants  before him except the five appellants  Who  have appealed to this Court.  As observed earlier, the appeal  of the present five appellants was dismissed by the High Court, but that of their other co-appellants was allowed. In  this  Court, Shri N. N. Goswami again  took  us  through certain  passages  from  the evidence of  some  of  the  eye witnesses and also referred us to certain passages from  the judgments  of the trial court and of the High Court for  the purpose  of showing that the testimony of the eye  witnesses relied  upon  by  the High  Court  is  wholly  unacceptable. According to the appellants’ submission there is a chance of false implication of all the accused persons with the result that the present appellants should also, have been given the benefit  of  doubt.  The refusal on the part  of  the  trial court and of the High Court to give such benefit of doubt to the  appellants,  according  to  the  learned  counsel,  has resulted in grave failure of justice. No  doubt,  in cases of party factions, there  is  generally speaking,  a  tendency  on  the  part  of  the   prosecution witnesses to implicate some innocent persons also along with the  guilty ones, but normally where the general  substratum of  the occurrence cannot be held to arouse  any  reasonable doubt  or suspicion about its having taken place,  then  the prosecution  witnesses,  provided  they  are  held  to  have witnessed the occurrence and to be in a position to identify the  assailants,  are ordinarily not to be assumed  to  have left  out  the  actual  offenders  or  the  guilty  persons. Although  the  witnesses  for the prosecution  are  in  such circumstances  prone  to exaggerate the culpability  of  the actual assailants as also to extend the participation in the occurrence to some possible innocent members of the opposite party as well, the court has to sift the evidence and  after a  close  scrutiny with anxious care and caution to  try  to come  to a judicial conclusion as to who out of the  accused persons  can be safely considered to have taken part in  the

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assault.   As  pointed  out  in  Deep  Chand  v.  State   of Haryana(1), the maxim falsus in uno falsus in omnibus is not a sound rule to apply in the conditions in this country  and therefore,  it  is the duty of the Court in  cases  where  a witness has been found to have given unreliable evidence  in regard to certain particulars, to scrutinise the rest of his evidence  with care and caution.  If the remaining  evidence hi  trust-worthy and the substratum of the prosecution  case remains intact, then the court should (1)  [1969] (3) S.C.C. 890. 106 uphold  the prosecution case to the extent it is  considered safe and trust-worthy.  In our view the evidence believed by both  the courts with respect to the five appellants  before us  is  acceptable, and, if accepted,  it  certainly  proves their  guilt  beyond  reasonable  doubt.   The   appellants’ counsel  also  faintly  contended that Tota  Ram  P.W.7  was examined  by  the  police  after  considerable  delay,   the suggestion  being that his evidence must be looked  at  with suspicion.   We are not impressed by this  submission.   The fact  of  delayed  examination of Tota Ram  should,  in  our opinion,  have been put to- the Investigating Officer so  as to  enable  him  to  explain the undue  delay,  if  any,  in examining  Tota Ram.  The question of delay in  examining  a witness  during  investigation  is material only  if  it  is indicative  and  suggestive of some unfair practice  by  the investigating agency for the purpose of introducing a got-up witness  to  falsely support the prosecution case.   It  is, therefore,  essential that the Investigating Officer  should be  asked  specifically  about the  delay  and  the  reasons therefore.   Tota Ram, P.W.7 has stated that it was  out  of fear  of the accused persons that he had hidden himself  for four days.  He left his house without telling any member  of the  family about it.  The Investigating Officers  were  not asked  any  question about the time of examination  of  Tota Ram.  It may be mentioned that Bhagat Singh, Assistant  Sub- Inspector,  C.I.D.  Interrogation Centre,  was  attached  to police  station, Abohar in August, 1963 and it was  he,  who having  heard cries like "Mardiya Mardiya" from outside  the police station, had rushed to the spot and found Jaidev  and Dharam  Vir lying injured on the road.  On August 12,  1963, Parphul  Singh,  Inspector, C.I.D. took  over  investigation from  Bhagat Singh.  Parphul Singh has appeared ;is  P.W.14. Though Bhagat Singh has been cross-examined kit some length, no  question  has  been  put to  him  with  respect  to  the examination of Tota Ram P.W.7. May be that he had nothing to do with it.  The cross-examination of Parphul Singh, P.W. 14 is,  however,  extremely  brief  and he  too  has  not  been questioned about any delay in examining Tota Ram. A  faint  suggestion  has  also  been  made  that   although according to the prosecution version, there were three jeeps engaged in the commission of the offence, tracks of only one jeep  were traceable, with the result that  the  prosecution story  as  a whole must be considered to  be  untrustworthy. This  argument  was  also  raised in  the  trial  court  but repelled in the following words               "The  learned counsel forgets that  the  three               jeeps  were not supposed to run side by  side.               If  the  jeeps  were running  one  behind  the               other, practically one track of the jeep could               be  noticed,  and no more.   Moreover,  A.S.I.               Bhagat Singh deposed on the point from memory.               His site plan does not indicate that the track               was of only one jeep, nor he has referred to a               note  in  the  case  diary,  to  support   his

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             assertion  on  the point.  Thus  there  is  no               discrepancy  between  the  eye  witnesses  and               A.S.I. Bhagat Singh on the point." This  point does not seem to have been pressed in  the  High Court and indeed even in the grounds of appeal, it does  not seem to have been specifically raised. 107 In  our  opinion,  the trial court  after  very  extensively dealing   with  the  entire  evidence  rightly  upheld   the substratum  of  the’ prosecution story.  No doubt,  it  held some  others  also guilty but that does not by  itself  show that  the  trial  court  was not  right  in  convicting  the appellants.   The  High  Court went into  the  points  urged before  it.  We are wholly unable to find any  infirmity  in its judgment which would justify interference under  Article 136 of the Constitution.  The conclusions of the High  Court on  facts after examining and considering the  evidence  and the  material on the record, are final unless  some  serious defect in its appraisal of evidence or otherwise  suggesting failure  of justice or grave injustice is pointed out.   The arguments  raised  before  us relate to  mere  appraisal  of evidence which, normally speaking, as a practice this  Court does  not undertake under Article 136 of  the  Constitution. No  special  or extraordinary feature has been  brought  out justifying departure from the normal practice. The appeal must, therefore, fail and is dismissed. V.P.S.                            Appeal dismissed. 108